United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON, DISTRICT JUDGE.
Sabina Burton is a tenured associate professor of criminal
justice at the University of Wisconsin-Platteville (UWP).
This is the second lawsuit Burton has brought against
defendant Board of Regents of the University of Wisconsin
System (the entity responsible for UWP) and UWP employees
concerning alleged discrimination and retaliation stemming
from Burton's assistance of a student who felt she was
sexually harassed by another professor. Defendants move to
dismiss each of Burton's claims under Federal Rule of
Civil Procedure 12(b)(6). Dkt. 15. The court will grant
defendants' motion on all but one of Burton's claims.
court draws the following facts from Burton's amended
complaint, Dkt. 10, and accepts them as true for the purpose
of deciding defendants' motion. Parungao v. Comm.
Health Sys., Inc., 858 F.3d 452, 457 (7th Cir.
2017). The court also draws facts from court records in
Burton's first lawsuit. Id.
April 14, 2014, Burton filed suit against the Board of
Regents and three UWP employees: Thomas Caywood, Elizabeth
Throop, and Michael Dalecki. See Burton v. Bd. of Regents
of the Univ. of Wis. Sys. (Burton I), No.
14-cv-274 (W.D. Wis. filed Apr. 14, 2014). She alleged that
she faced discrimination and retaliation from UWP colleagues
and administrators after she advocated for a student who
complained of sexual assault at the hands of another UWP
professor-both because of her support for the student and
because of the administrative charges of discrimination and
the lawsuit that she eventually filed.
November 12, 2014, Burton filed a grievance with the UWP
Complaints and Grievances Commission regarding a letter of
direction placed in Burton's personnel file by defendant
Elizabeth Throop, the dean of the UWP College of Liberal Arts
and Education.Defendants Elizabeth Frieders, Qiong Li,
Mary Rose Williams, and Staci Strobl were members of the
Commission at the time; defendant Daniel Fairchild was the
chairperson. The UWP policy on grievances required a hearing
within 20 working days of filing a grievance with the
chairperson, but no hearing was scheduled on Burton's
grievance. On September 11, 2015, Burton amended her
complaint in Burton I to include claims concerning
the letter of direction and subsequent grievance. On October
19, 2015, Burton withdrew her grievance against Throop.
Strobl became chair of the criminal justice department. She
immediately began to scrutinize Burton more than other
criminal justice faculty and staff. For example, she sent
“a copy of each email” from Burton to Throop and
other UWP administrators. Dkt. 10, ¶ 162. At one point,
Burton complained to Strobl that other faculty and staff,
including Deborah Rice and Michael Dalecki (the former
interim chair of the department), were harassing her, but
Strobl did nothing.
March 2016, the court granted summary judgment in the
defendants' favor on all of Burton's claims. See
Burton I, 171 F.Supp.3d 830 (W.D. Wis. 2016). The court
did so because Burton conceded that she could not succeed on
many of her claims and adduced no evidence that she suffered
materially adverse actions as a result of filing charges of
discrimination and bringing the lawsuit. Id. at
833-34. The court denied Burton's pro se motion for
reconsideration. See Burton v. Bd. of Regents of the
Univ. of Wis. Sys., No. 14-cv-274, 2016 WL 35112287
(W.D. Wis. June 22, 2016). Burton appealed; the Seventh
Circuit affirmed. See Burton v. Bd. of Regents of the
Univ. of Wis. Sys., 851 F.3d 690 (7th Cir. 2017).
April 26, 2016, Burton filed a grievance against Rice because
Rice falsely stated that Burton had a mental illness. She
also renewed her grievance against Throop and requested a
hearing. The grievance policy did not explicitly prohibit or
allow renewal of grievances. She explained that she wanted
the letter of direction removed from her personnel file and
that she “possessed testimony and documents from
[Burton I] that showed that the alleged incidents in
the [letter of direction] involved protected activity . . .
and/or were factually incorrect.” Dkt. 10, ¶ 132.
Throop learned of Burton's request and talked to one or
more of the Commission members about it. On May 3, the
Commission refused to hear Burton's grievance against
Rice or her renewed grievance against Throop.
2, Dalecki mimicked shooting a gun at Burton with his hand.
On May 9, Burton told the UWP director of human resources,
Janelle Crowley, about this gesture, which Burton took as a
threat made in response to Burton's activities concerning
Burton I. Dalecki was never disciplined for this
gesture. On the same day, Crowley agreed to remove the letter
of direction from Burton's personnel file. But soon
after, Crowley spoke to Throop and then refused to remove the
letter of direction.
11, Strobl told Burton that she would remove Burton from a
grant project. When the grant proposal was submitted a few
weeks later, Burton was listed merely as a resource, not
among key personnel. This meant that if the grant was
approved, Burton would not be paid for any work she did on
3, the UWP chancellor, Dennis Shields, sent Burton a letter
of direction. The letter reprimanded Burton for reporting
Dalecki's gesture, Strobl's removal of Burton from
the grant project, and other “retaliation and
harassment, ” and for requesting that her grievances
against Throop and Rice be heard. Id. ¶ 186.
20, Burton filed an administrative charge with the U.S.
Department of Education Office for Civil Rights and the Equal
Employment Opportunity Commission (EEOC) concerning the
events detailed above. The EEOC issued Burton a right-to-sue
letter on October 14.
filed suit in this court on January 17, 2017. Dkt. 1. She
filed an amended complaint on April 9, 2017. Dkt. 10. The
court has subject matter jurisdiction over Burton's
claims under 28 U.S.C. § 1331 because they arise under
claims litigated in Burton I are clearly intertwined
with the claims Burton asserts here. So before determining
whether Burton states a claim for relief in this lawsuit, the
court will define the scope of those claims in light of the
preclusive effect of Burton I. Doctrines of
preclusion “preclud[e] parties from contesting matters
that they have had a full and fair opportunity to
litigate.” Taylor v. Sturgell, 553 U.S. 880,
892 (2008) (quoting Montana v. United States, 440
U.S. 147, 153-54 (1979)). Claim preclusion bars successive
litigation of “any claims that were litigated or could
have been litigated in a previous action, ” Bell v.
Taylor, 827 F.3d 699, 706 (7th Cir. 2016), whereas issue
preclusion bars “successive litigation of an issue of
fact or law actually litigated and resolved.”
Taylor, 553 U.S. at 892 (quoting New Hampshire
v. Maine, 532 U.S. 742, 748-49 (2001)). Defendants
assert only issue preclusion as an affirmative ...